Supreme Court to Examine Governors’ Role in Potential Subversion of Federalism

The Supreme Court agreed to examine if Governors, by indefinitely sitting on crucial Bills only to eventually refer them to the President who solely acts on the advice of the Centre, are opening the doors for Union interference in the legislative domain of States, thereby subverting federalism.

Background

• Petition Filed by the State of Kerala:  The decision of the Supreme Court to intervene came in a petition filed by the State of Kerala which brought into focus the role of its Governor, who kept Bills pending for two years before reserving seven of them for the consideration of the President.
• Bills in Question:
  • None of the bills dealt with Centre-State relations.
  • They were concerned about amendments to State cooperative societies, Lok Ayukta, and university laws.
• President’s Role: The President has no discretion and entirely depends on the aid and advice of the Centre. 
  • The President had subsequently withheld consent to four bills though none of the seven Bills had dealt with Centre-State relations.
• Argument of the State of Kerala: 
  • Required Action by the Governor: The Governor should have returned the Bills to the State Legislative Assembly with reasons for objections. 
  • Referral to the President: However, the Governor referred the seven Bills to the President without mentioning the time-lapse.
  • Withholding of Assent: Kerala said the Centre had withheld assent on four Bills without assigning any reasons.
  • Impact on Welfare Legislation: Delays denied the people of Kerala the benefits of welfare legislation.
  • Violates Article 14, Article 200 and 201 of the Indian Constitution: This is a highly arbitrary action, violating Article 14 (right to equality) of the Constitution, as well as Article 200 (procedure for granting assent to Bills) and 201 (procedure regarding Bills reserved for consideration of the President).
  • Governor’s Limited Power: The Governor’s power to reserve a Bill for the President is limited and is confined to specific circumstances as detailed in the provision to Article 213 of the Constitution.

Recently Punjab, Tamil Nadu and Delhi  have also moved the SC seeking that it instructs Governors that they cannot indefinitely delay assent to Bills that a state Assembly has passed.

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Factors Behind Misuse of Powers by Governors

Governors have faced accusations of misusing their powers and unfairly withholding assent to Bills, leading to friction with State governments. The key factors contributing to this issue include:

• Lack of Time Limit: The Constitution does not specify a time frame for the Governor to decide on assent to a Bill, allowing indefinite delays.
  • Article 200 of the Indian Constitution requires the Governor to return a Bill “as soon as possible” but does not define a specific timeframe.
  • A Governor can exercise a Pocket Veto.
• Misuse of Discretionary Powers:
  • There is a discretionary power given to the Governor especially in the Article 163 of the Indian Constitution. 
  • As per the Article 163 of the Indian Constitution, if any question arises on whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
• Misuse of Article 200 and 201: The power to withhold assent to a bill along with reserving the bill for the consideration of the President. 
  • States allege that this provision has often been misused by the governor who acts on behalf of the union government.
• Article 361 of the Indian Constitution: Article 361 states that the President, or the Governor of a state, “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”, unless it is by Parliament for impeachment from office.  
  • This immunity complicates a government’s ability to challenge a Governor’s decision to withhold assent to a Bill.

• Politicisation of the Post: The Governor’s role has often been politicised, leading to conflicts between State and Central governments. This politicisation undermines the impartiality and effectiveness of the gubernatorial office.
• Accusations of not functioning Independently: In 2001, the National Commission to Review the Working of the Constitution observed that Governors, appointed and retained by the Union Council of Ministers, may be perceived as “agents of the Centre” in disputes between Central and State governments due to potential alignment with Union instructions.

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Governors and their Powers over State Bills – Article 200

• As per Article 200 of the Indian Constitution, When a bill is sent to the governor after it is passed by state legislature, (Refer Infographics):

What are the Legal Arguments against Delaying Assent?

• States’ Constitutional Obligation: 
  • The Governor’s inaction on bills passed by the Assembly prevents the state government from functioning in accordance with the Constitution.
  • If the Governor fails to act constitutionally, the State government has an obligation to invoke Article 355 and notify the President.
  • The State can request the President to issue instructions to the Governor to ensure the government functions according to the Constitution.
• Dishonour to Supreme Court Ruling: Despite immunity for the Governor under Article 361, the Governor must disclose reasons for withholding assent. 
  • As a high constitutional authority, the Governor cannot act arbitrarily.
• Grounds for Challenging Refusal of Assent: 
  • Unconstitutional Refusal: If a Governor’s refusal to assent to a Bill is based on mala fide, extraneous considerations, or is ultra vires, it could be deemed unconstitutional.
  • Supreme Court Precedent: The Supreme Court in Rameshwar Prasad vs Union Of India established that the immunity under Article 361(1) does not prevent the Court from examining the validity of the Governor’s action, including on grounds of mala fides.
• State of Punjab vs Principal Secretary to the Governor OfPunjab and Ors (2023).
  • In a recent case from Punjab, the Supreme Court clarified that in a parliamentary democracy, Governors do not have a unilateral veto over Bills passed by the legislature. 
• The State Of Telangana Versus Governor For The State Of Telangana & Anr: The SC held that the first provision to ‘Article 200’ states that the Governor may “as soon as possible after the presentation” of the Bill for assent, return the Bill if it is not a Money Bill together with a message for reconsideration to the House or Houses of the State Legislature. 
  • The expression “as soon as possible” has significant constitutional content and must be borne in mind by constitutional authorities.

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Issues with Governors Withholding Assent to Bills

• Subversion of Federalism: Partisan actions by Governors in rejecting state legislation at the Centre’s behest can undermine federalism, a core feature of the Constitution.
  • The Governor’s actions subvert the federal structure of the Constitution, by reserving for the President (acting on the aid and advice of the Union Cabinet) Bills which are wholly within the domain of the State under the Constitution.
• Central Interference in State Matters: Governor’s Actions Allowed the Centre to make decisions on issues within the State’s legislative domain.
  • It also renders the functioning of the elected executive and the State Legislature ineffective.
• Undermines the Democratic Process: Governors, appointed by the Centre and not elected, can delay or reject Bills for political reasons, undermining the democratic process.
• Lack of Accountability: Governors are not constitutionally mandated to provide reasons when withholding assent, reducing accountability.
• Abuse of Power: Withholding assent to Bills, when used unreasonably, can constitute an abuse of power. 
  • This exceptional authority is intended for rare circumstances and not for obstructing the legislative process.
• Delay in Decision-Making: Delays in granting assent to Bills, in this case relating to State cooperative societies, Lok Ayukta, and university laws, disrupt the effective functioning and implementation of essential reforms.

Measures To Solve the Friction Between Governors and the State Government:

• Keeping up the core spirit of Federalism: Federalism is a fundamental feature of the Indian Constitution, and the Governor’s office must not undermine the powers of elected state governments (S. R. Bommai v. Union of India Case 1994).
• Transparent Selection Process: Implement a transparent and merit-based process for appointing governors. This reduces the influence of political bias and ensures qualified individuals are chosen based on their competence rather than party affiliation
  • The Constitution could be amended to require consultation with Chief Ministers before appointing Governors.
  • The Punchhi Commission’s recommendation for State Legislature impeachment of Governors could be considered to ensure accountability.
• Doctrine of Neutrality: Through its various judgments, the Supreme Court has highlighted the need for authorities like the Speaker and Governor to be faithful to the doctrine of neutrality and not vacillate under “prevailing political pressures” thus maintaining Political Neutrality.
  • Governor as impartial constitutional head of state ensuring that the legislature functions effectively and that the Bills passed are in consonance with the Constitution.
• Intervention of Supreme Court: The Supreme Court should step in and tell the Governor when they can refuse Bills and when they can refer them to the President. The clear guidelines of the Supreme Court can help tackle this issue significantly.
• Clarification of Reasonable Time Limit: The SC has observed that the Governor should not unduly delay in granting or withholding assent. A clear definition of a “reasonable time limit” would provide more transparency and predictability in the process.
• • Justice Rohinton F. Nariman, in his 2020 judgment in the Keisham Megha Chandra Singh case, said a ‘reasonable time’ would mean three months.

Conclusion

The SC needs to safeguard the balance of power between the state legislature and the Governors. All constitutional authorities are required to act in a reasonable manner. Unreasonable acts are unsustainable in law.

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